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Introducing "reasonably" will create uncertainty and will make it more burdensome for employers, rather than looking simply at the grounds that we have defined. In practice, when considering requests, employers would have to consider which of the permissible grounds for refusal are relevant, and why. They would then need to explain this decision to their employee when they notify them of their decision. If the employer is acting unreasonably, it will be difficult to give the necessary explanation in the decision notice, and it would be open to the employee to challenge the decision on the basis that it is based on incorrect facts. That keeps it as simple as we possibly can make it.
Amendment 86 would narrow the cost ground of refusal so that it applied only where the costs relating to the training outweigh the value of the proposed training and are an unreasonable burden. In our view, cost considerations may be a legitimate factor in an employer's decision to refuse an application in a wider variety of cases than that proposed by the amendment, where, for example, employers may simply be unable to meet the costs of covering an employee's absence, however great the potential benefit to the business.
Amendment 87 would mean that an employer could refuse an application only where agreeing it would have a "significant detrimental effect" on the employer's ability to meet customer demand rather than simply a "detrimental effect" on this ability. While I understand that this amendment is intended to clarify the test, we do not want to try and quantify the level of detriment that would need to apply in order for a request to be refused. It may be that an employee's absence at that time would put an unreasonable strain on the performance of the business. It may be just a question of timing and something that can be resolved in the future. However, the employer should not have to try to quantify that in the way that is suggested in this amendment by the introduction of the word "significant".
Provided that there is some detriment, if it is a level of detriment that the employer does not wish to, or cannot, bear, then it is right that they should be able to decline a request on this basis, just as they can under the flexible working arrangements. I stress that again. We tried to model that procedure so that we are not introducing a fresh procedure. There may be genuine instances where a particular request will have a detrimental impact that employers feel make it impossible to accede to a request, and I have instanced a possible example of that.
While we believe that these decisions are best left to employers, there are safeguards in the system-I stress that to the noble Baroness, Lady Sharp-for the employee. As I said, it is a question of balance. The employer will
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Amendment 88 would have the effect of redefining one of the permissible grounds for refusal set out in new Section 63F(7). Rather than specifying "insufficiency of work", it would refer to inability to provide work during the periods that the employee proposes to work. We do not want employers to be obliged to find something for the employee to do at times when the employee proposes to work in order to accommodate training. Instead we want the employer to consider in the light of the current business situation how much work is available during the periods proposed. That is the correct position. No doubt we will find that employers are prepared to be flexible in many cases.
As I said, this new right is modelled closely on the flexible working arrangements which employers are familiar with and which we know work well. That is important. We are not introducing a new procedure here; we are introducing something of which both employers and employees already have experience. This close alignment between the two rights has been welcomed by stakeholders and was supported in the consultation responses as something that would be helpful to employers. We therefore wish to maintain this, and we do not want to create unnecessary differences between the two rights that have the potential to cause confusion.
On the reasonableness test, it was asked whether employers who do not offer training will not simply refuse applications. We think that it may well trigger a discussion about training and that employers may well see the advantages of training. We think that the balance is correctly set where the employee can appeal on grounds of procedure or incorrect facts; we think that is the right way to approach it. In these circumstances it is best for both the employer and the employee to keep it simple and modelled on existing procedures. Therefore, in the light of the explanation and assurances given, I would be grateful if the noble Baroness would consider withdrawing the amendment.
Baroness Sharp of Guildford: I am grateful to the Minister for his explanations. These are probing amendments seeking clarification and the wording of certainly some of them is not necessarily perfect. The idea was to try to get a clearer picture. On the first amendment, I am grateful to the Minister for making it quite clear that there is a right of appeal and that it will be spelt out in the indicative regulations that he will circulate to us.
I now understand better the Minister's objection to including "reasonably" in relation to what the employer thinks. The question of what the employer thinks is somewhat subjective, and it is being left as a somewhat subjective decision. One accepts that. As the Minister
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The answer with which I feel least satisfied was that to Amendment 87 and the issue of "significant". If we say that we do not want to quantify the element of detriment it will leave the issue extraordinarily uncertain. The answer, as the Minister says, is that it will have to be tested at a tribunal. However, the term "significant" would have to be tested at a tribunal in exactly the same way.
I again thank the Minister for his explanation and I beg leave to withdraw the amendment.
Amendments 84 to 88 not moved.
7.15 pm
89: Clause 39, page 21, line 3, at end insert-
"( ) fails to attend more than two consecutive periods of study or training"
Lord De Mauley: As will be clear from the debate on the previous group of amendments, we support the time-to-train proposals. It is fundamentally important to ensure that those who wish to build on their skills, achieve their ambitions or improve their standing should be allowed to make an application to their employer for time to do it. Nevertheless, we also want to make it very clear that the interests of employers must be taken into account. The IOD, in its response to the Government's impact assessment of these provisions, stated that,
- "no evidence was presented to support the implication that employers are not open to training requests, deny employees the opportunity to discuss training needs or do not treat requests seriously".
Does the Minister not accept that many employers already do their utmost to ensure that employees are constantly developing their skills training? Does he not support the voluntary measures that many businesses already use in order to make sure that this training can occur? Does he not accept that many businesses do this purely because of good business sense because further training means better staff, which in turn means a more efficient business?
The right to training is very important. Nevertheless, it is vital to find a way of ensuring not only that employees retain their right to training but that employers are not overburdened. It is this thought that is behind these amendments.
Amendment 89 would mean that if an employer has agreed to a request for training, or a part of it, then the employee must inform his employer if he fails to attend more than two consecutive periods of study or training. It seems to me that this is an unobjectionable duty on the employee. As we all know, with rights come responsibility. If the employee has enjoyed the right but also the privilege to request time to train,
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Moreover, we would go further. The Bill as it stands allows the Secretary of State to make regulations regarding the way that the employee will inform the employer of any changes in the training he will carry out. We would like to see a provision in the Bill which states that if an employee fails to start, attend or complete study that has been agreed with the employer, it should constitute grounds for removing the time off.
Does the Minister not accept that while there is clearly an argument for allowing employees to ask for time off, they should not be allowed to abuse this right? Does he not agree that we must also protect employers and businesses from the risks associated with the fact that some people may find themselves unable to attend training, or indeed may have abused the system to the disadvantage of the employer? We want to protect the employer from losing out.
There is an argument, of course, that if the employer is awarded the right to withdraw training that has not been completed to the terms of the agreement, there should be a commensurate right for the employee to appeal against this result. This may result in greater bureaucracy. Nevertheless, I am not sure that this is an entirely satisfactory response. We must not draw away from finding a solution which would protect employers simply because of the complexities involved. It is important that these issues are resolved. I look forward to the Minister's response, and I beg to move.
Baroness Wall of New Barnet: Perhaps I may suggest that Amendment 89 probably relates to new subsection (2), at the bottom of page 20, which talks about failing,
Amendment 89 seeks to describe what that means whereas Amendment 90 refers to paragraph (c). I think that the Bill is strong enough. If a trainee-it does not matter whether he or she is in an apprenticeship-fails to attend a course, the college will automatically advise the employer that they have not attended. They do this regularly, on a weekly basis. If I am supposed to go every week but do not turn up, my employer will get a phone call saying, "Do you realise that Margaret Wall hasn't turned up?". So I think that that is taken care of.
On the other amendment, in reality new Section 63H(2)(c) certainly says that if an individual,
the agreement would be broken. The employee would lose the opportunity to have that training leave continued. They would not be doing what the agreement asked them to.
Baroness Howe of Idlicote: I found both those amendments perfectly reasonable. However, having heard what the noble Baroness, Lady Wall, has just said, maybe they are covered sufficiently, although we would need a little more emphasis on how the employer will get to know the situation. We must be assured that all colleges behave as described by the noble Baroness, Lady Wall.
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Lord Young of Norwood Green: We certainly sympathise with the desire of Members opposite to keep burdens on business to a minimum and to get the balance right between employers and employees. I hope that the noble Lord, Lord De Mauley, believes me on that score. I accept his point that many employers do their best to provide good quality training. We also accept that this is a question of rights and responsibilities, and not just about the employer's responsibility or employee's rights, but also about the employee's responsibilities in this matter. There is no difference between us on this.
Amendment 89 would place a requirement on employees to inform their employer if they fail to attend three or more consecutive periods of study or training. As my noble friend Lady Wall said-it is so good to have her wise counsel on these areas-the provisions already cater for this. New Section 63H quite rightly requires employees to inform their employer if they fail to start or fail to complete the agreed study or training, and also if they do, or propose to do, study or training which is different to that which they agreed with their employer. We have covered the three circumstances: they fail to start; they fail to complete; or they embark on something that was not agreed with the employer. So if they do not attend their course as arranged, that would be a change that would be covered.
My noble friend Lady Wall made the point that colleges and training providers have a responsibility that they exercise in saying to employers, "Well, I know that you think that your employee is attending this training course, but I have to advise you that he or she is more often honouring that in the omission rather than the commission". That is already current business practice.
Amendment 90 proposes that the employer should be permitted to withdraw support on the grounds that the employee had failed to start, attend or complete the agreed study or training. However, as the noble Lord, Lord De Mauley, recognised, providing such statutory provision for employers risks adding an additional level of bureaucracy and further burdens on employers, as we would need to consider giving a similar level of statutory protection to the employee to be able to appeal such decisions.
We do not want to do that, but do want to emphasise the noble Lord's point about the responsibilities of an employee. In our view, it would be better if, at the time of agreeing a request, the employee and employer also agreed any terms under which support may be withdrawn. This recognises the need for a certain level of flexibility and sensible discussion by both parties that will be necessary for these provisions to work.
In many cases, withdrawal of support will be less of an issue, particularly where it has been agreed that the employee will attend a course of only a short duration. In other cases, it may be appropriate for any breach on the part of the employee to be dealt with through the employer's disciplinary procedures.
However, I agree that these are important matters and, in the light of today's debate, I will certainly commit to providing guidance that explains employees' and employers' responsibilities under these provisions.
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Lord De Mauley: I am grateful to the noble Baroness, Lady Wall, for her comments, which I will consider carefully, and to the noble Baroness, Lady Howe, for her contribution. Before I withdraw the amendment, can the Minister confirm that all colleges are required to report non-attendance to employers? That was suggested by the noble Baroness, Lady Wall, and the noble Baroness, Lady Howe, asked about it.
Lord Young of Norwood Green: We will write to the noble Lord to confirm the normal practice.
Lord De Mauley: Very well. I thank the Minister and am happy, on that basis, to beg leave to withdraw the amendment.
Schedule 1 : Employee study and training: minor and consequential amendments
91: Schedule 1, page 161, line 34, at end insert-
" In section 236(3) (orders and regulations subject to affirmative Parliamentary procedure), after "47C," insert "63D, 63F(7),"."
The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Baroness Morgan of Drefelin): This government amendment takes account of the recommendations of the Delegated Powers and Regulatory Reform Committee, looking at the regulation-making powers in Clause 39. The committee's recommendation is that they should be subject to the affirmative, rather than the negative, procedure. It is appropriate that we should take these recommendations on board. I know that the party opposite has also tabled an amendment that is similar in effect, and I hope that the noble Lord will agree that the government amendment will take on board the concerns that I expect the party opposite to raise.
Lord De Mauley: I am grateful to the Minister. I think I am right, as she seemed to suggest, that we are both aiming to achieve the same thing. I do not know whether she can help on whether there is any difference in the effect of these amendments, other than the Government's being perhaps a little more elegant.
Baroness Morgan of Drefelin: The advice that I have had is that there is no difference in the overall objectives, but the government amendment is technically correct. That is why we have tabled it.
Schedule 1, as amended, agreed.
House resumed. Committee to begin again not before 8.29 pm.
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Common Fisheries Policy Report
The Progress of the Common Fisheries Policy (21st Report, Session 2007-08, HL Paper 146)
Question for Short Debate
7.30 pm
To ask Her Majesty's Government what is their response to the report of the European Union Committee, The Progress of the Common Fisheries Policy (21st Report, Session 2007-08, HL Paper 146).
Lord Sewel: My Lords, at this stage I am tempted to somewhat curtail the dinner hour debate and say that this is a pretty good report, that the Commission has by and large followed it and that I hope that the Government will support the Commission and our report, and to sit down. However, that might be something of an anticlimax, if ever there can be an anticlimax during the dinner break.
Let us go through some of the history. Our report was published in July 2008 and was basically a mid-term review of the reforms introduced in 2002, which, I am afraid, were a complete and utter failure. In April this year, the Commission published its Green Paper on reform of the common fisheries policy, which followed an absolutely devastating report from the Court of Auditors. Perhaps I may quote three elements of that report. The court said, first:
"Catch data are neither complete nor reliable, due mainly to weaknesses in the Member States".
"The inspection systems do not provide assurance that infringements are effectively prevented and detected".
Thirdly, and perhaps most importantly, it said:
"Overcapacity detracts from the profitability of the industry and incites non-compliance".
That, in a way, is the nub of the problem.
I know that there are Members of your Lordships' House who somewhat decry the activities of your Lordships' European Union Select Committee and say that it has little or no influence. However, in this area I think we have demonstrated that we have significant influence in that our report predates the Commission's Green Paper and that Green Paper follows very closely the line of argument that we advanced in our report.
I want to begin with two propositions, and the use of the definite and indefinite article is important here. First, "a" common fisheries policy is part of our treaty obligations as a member of the EU, and we cannot maintain that membership without acceptance of such a policy. I am sure that the noble Lord opposite will endorse that position. Even non-membership of the EU would, under international law, require us to put in place something at least closely similar to the common fisheries policy. The second proposition is that "the" common fisheries policy as we know it is broken, busted and an unqualified failure. It has totally failed to deliver the objectives of a sustainable fisheries policy. It is top-down, it rests on regulation upon regulation, and it is a system that alienates the fishermen, the scientists and the processors. It is bound to fail.
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In line with what we discovered through evidence, there are a number of reasons why we maintain that the dismal reputation of the common fisheries policy, as it is now, is totally justified. Let us look at the outputs. Despite the extensive nature of the regulatory regime for fisheries in EU waters, around 88 per cent of stocks in Community waters are overfished compared with the global average of 25 per cent. At the same time, many segments of the EU fishing fleets achieve poor profitability and, as a result, are vulnerable to increases in operating costs.
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